San Bernardino County finalized its adoption of a revised ordinance prohibiting commercial soliciting at the county Hall of Records, two months after Superior Court Judge David Cohn ruled the initial ban unconstitutional.
The same company which successfully challenged the previous anti-soliciting ordinance came before the board of supervisors this week to again question the intent and legality of the county’s action.
The first anti-soliciting ordinance passed in July and August of 2015 – Ordinance 4282 – added Chapter 30 to Division 1 of Title 4 of the San Bernardino County Code to prohibit solicitation to market or advertise products, services, or property by any person, association, group or other entity on county property. The ordinance was framed with the California New Business Bureau in mind. The company has offices in Norwalk in Los Angeles County, Santa Ana in Orange County and San Bernardino in San Bernardino County, and offers a full line of services to start-up and existing businesses with regard to filing for corporation or partnership status, permits, licenses, establishing trademarks, registering and other applications with regard to operating a business. A major line of service at the company’s San Bernardino location, which is located across the parking lot from the county’s Hall of Records, is assisting those applying for fictitious business names in the county recorder’s office.
Because of the California New Business Bureau’s proximity to the Hall of Records and its practice of stationing its employees near the county facility and approaching those going into or coming out of the county clerk/recorder’s office, which is located on the ground floor of Hall of Records, the company was seen as an interloper by many newspapers in the county. Bonafide newspapers derive a major portion of their income through the publishing of legal notices, such as those for fictitious business names, which are registered at the county clerk’s office. Some newspapers, such as the Sentinel coordinated with the California New Business Bureau to publish those notices. Other newspapers did not.
As a consequence of complaints from some of the newspapers, the county last year passed Ordinance 4282, which banned solicitation on county property and at, within and around county facilities in general. In September the county began enforcing the ordinance, but significantly, did so only at the Hall of Records, located at 222 West Hospitality Lane in the City of San Bernardino. Four California New Business Bureau employees were cited for being in violation of the ordinance and were hit with fines. In some cases, those fines totaled several thousand dollars.
California New Business Bureau owners Eleazar Duque and his son Steven retained the services of Pasadena-based attorney Oscar Acosta. Acosta filed an action in San Bernardino Superior Court in which he challenged the ordinance on freedom of speech, freedom of assembly and tortious interference grounds.
Two months ago, the matter came before Judge David Cohn, who found that the California New Business Bureau was engaging in protected commercial speech, that the ordinance was impermissibly vague and that the ordinance was unconstitutional. Cohn ordered that the fines be vacated.
While the county did not challenge Cohn’s ruling, it set about redrafting the ordinance. In the redraft, the county removed exemptions that were contained in the original ordinance. Moreover, it limited the applicability to just the Hall of Records, a move that betrays that the target of the ordinance is the California New Business Bureau.
Indeed, whereas the staff report accompanying the ordinance passed in 2015 made no direct reference to the California New Business Bureau, the staff report accompanying the newest ordinance makes explicit reference to the company. In the staff report for the June 28 meeting at which the board of supervisor held its first vote on the revamped ordinance, Terry W. Thompson, the director of the San Bernardino County Real Estate Services Department, wrote, “Ordinance No. 4282 was challenged in a state court action by the California New Business Bureau as facially invalid. On May 10, 2016, the court issued a tentative decision determining that Ordinance No. 4282 was unconstitutional due to the exemptions section.”
Thompson stated, “Commercial activity on the Hall of Records Campus is an intrusion upon, and creates significant interference with, the ability of individuals to access the county’s services and information. Patrons are confronted by in-person solicitors and vendors peddling third party products and/or services just at the moment they are seeking to access free government information and/or services. This interferes with the function of the Hall of Records Campus. The county recorder has received from patrons of county services at and within the Hall of Records Campus numerous written complaints, including complaints of being accosted by aggressive solicitors, of being misinformed by third party solicitors that certain of the county clerk’s functions have been relocated to the premises of a private business, and of misidentifying third party solicitors as county employees because of their wearing lanyards with identification badges similar in appearance to those worn by county employees. Moreover, county employees have reported incidents with third party solicitors that were intimidating, confrontational and gave rise to employees’ concerns for their personal safety.”
The explicit mention of the California New Business Bureau in the county staff report and the move to downgrade the anti-solicitation ordinance to one that applies to the only county facility where the California New Business Bureau plies its trade, taken together with the consideration that the county never enforced Ordinance 4282 against a host of other vendors at other county facilities, again leaves the newest solicitation ban subject to legal challenge.
Prior to Tuesday’s vote to adopt the new ordinance, both Eleazar Duque and Steven Duque warned the board of supervisors’ that the county’s action was likely to lead to a further legal challenge.
Eleazar Duque said, “Last year you passed Ordinance 4282, which was determined to be unconstitutional. The sole purpose of that was to put California New Business Bureau out of business. For whatever reason, the supervisors have decided to put an honest, hardworking group of people out of work. This new ordinance you are proposing now has the same intent, to put us out of business. For what reason again, your God only knows why. You claim we mislead, that we intimidate, that we impede, that we harass, that we defraud people. Let me tell you who impedes: You have impeded us as to our freedom of speech, freedom of enterprise. You have impeded us to do our job, just because you can. You talk about misleading. Let me talk about misleading, Mr. Thompson writes, ‘The court tentatively determined that 4282 was unconstitutional.’ It wasn’t tentatively. It was done. It was found to be unconstitutional. Let me tell you about defrauding. Your code enforcement wrote thousands of dollars worth of citations to us, personal and through the mail on an unconstitutional ordinance. Is that defrauding? They defrauded us of thousands of dollars, your code enforcement people. You talk about intimidation. Your people use Gestapo tactics to intimidate us. The DA went to our office, as did the fire department, police department, code enforcement, sheriff’s department. We got anonymous calls that our office was going to be burned down if we didn’t move out. Is that intimidation? You talk about us, trying to make an honest living, that we intimidate people. Our employees are more educated, more professional than any of your county employees.”
Steve Duque said, “This is the second time we have been here and it seems like our voices are never heard. I’ll just do this for the record because after I speak you guys will go ahead with the decision you have already made behind closed doors. Let the record state that San Bernardino County has made it their goal not only to crush us but to run our small business out of town. We’ve been doing ethical business for 12 years in three different counties. San Bernardino County has spent hundreds of thousands of dollars drawing up and defending these unconstitutional ordinances, which were deemed to be unconstitutional in a court of law. And now you are going to spend hundreds of thousands of more dollars to file this new ordinance. The ordinance says you are trying to protect the public. I’m sure that we’re not public enemy number one. I’m sure that San Bernardino County has better things to spend hundreds of thousands of dollars on, maybe on the men and women of law enforcement who put their badges on every day and risk their lives on trying to really protect the public. Maybe the hundreds of thousands of dollars could go for that. Or maybe the hundreds of thousands of dollars you guys have already spent and are planning to spend on this new ordinance could go to the public schools or even the kids who are dying in the custody of San Bernardino County instead of trying to run us out, an honest business. It’s funny that you guys opened [this meeting] up in prayer and in Hebrews, because the people who work for us, one of them is a certified minister, the other is a youth pastor and the other is a worship leader. These are the people you are trying to run out by spending hundreds of thousands of dollars on these new ordinances. I’m strictly here for the record because I know your decision is already made. I hope you take this into consideration and think of better ways to spend hundreds of thousands of dollars like you already did on trying to protect these unconstitutional ordinances.”
The board of supervisors, with supervisor Janice Rutherford absent, voted 4-0 to pass the ordinance.
Eleazar Duque told the Sentinel that the accusations against his company, in particular that its employees are in any way interfering with members of the public in their efforts to access public records are patently false, He said the claim that his employees have misinformed members of the public about the location of public offices are likewise fabrications. He said his employees make no claim to be county employees and carry clip-on identification and where shirts with logos clearly identifying themselves as California New Business Bureau employees.